Kong Swee Eng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] SGCA 65
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 28 of 2021
• Published date: 18 October 2022
• Year: 2022
• Hearing Date: 10 October 2022
• Plaintiff Counsel: Sunil Sudheesan, Khoo Hui-Hui Joyce and Chow Ee Ning (Quahe Woo & Palmer LLC)
• Defendant Counsel: Jiang Ke-Yue and Dhiraj G Chainani (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal reference,Leave to refer
• Citation: [2022] SGCA 65

Tay Yong Kwang JCA (delivering the judgment of the court ex tempore): Background

Kong Swee Eng (the “applicant”) and her husband owned a company called Rainbow Offshore Supplies Pte Ltd (“Rainbow”). Rainbow was in the business of supplying equipment and materials for the oil and gas industry. At the material times, Rainbow was a supplier of Jurong Shipyard Pte Ltd (“JSPL”) and JSPL was its only customer. In 2016, following investigations by the Corrupt Practices Investigation Bureau, the applicant was charged under s 6(b) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) with ten counts of corruptly giving various forms of gratification to JSPL employees between 2008 and 2013 to advance Rainbow’s business interests with JSPL. The majority of the employees who received the gratification worked in JSPL’s procurement department.

Procedural history Trial in the District Court

At trial, the applicant raised several defences to the charges she faced. In particular, she claimed that there was a “special relationship” between Rainbow and JSPL by which Rainbow was effectively guaranteed JSPL’s custom. This went towards the mens rea of the ten charges because the gratification would not have advanced Rainbow’s business interests if Rainbow had been guaranteed JSPL’s custom. There would therefore have been no corrupt intent in the giving of the gratification. Throughout these proceedings, this has been called the “special relationship” defence and we adopt the same term here.

On the applicant’s case, there were only four persons who were privy to this alleged special relationship: (a) the applicant; (b) her husband, Huan Ming Chye Michael (“Mr Huan”); (c) the chief executive officer (“CEO”) of JSPL at the time of the trial, Wong Weng Sun (“Mr Wong”); and (d) the previous CEO of JSPL, Tan Kim Kuan (“Mr Tan”). Mr Wong and Mr Tan were not called to testify for the Prosecution. Mr Huan was a witness for the Prosecution and during his testimony, he suggested that there was a unique business relationship between Rainbow and JSPL, although he did not go so far as to say that Rainbow was guaranteed JSPL’s custom. The applicant gave evidence in her own defence and it was only then that she raised the special relationship defence.

Around this time, the Prosecution indicated to the District Judge (the “DJ”) and the applicant that it intended to call Mr Wong as a rebuttal witness. Near the end of the Defence’s case, however, the Prosecution decided otherwise. The Prosecution then disclosed Mr Wong’s investigation statements to the applicant’s then defence counsel, Mr Michael Khoo SC (“Mr Khoo”). This was after the applicant had testified in her own defence. The Defence was given the opportunity to call Mr Wong as its witness on the special relationship defence but Mr Khoo took the view that the onus lay on the Prosecution to rebut the special relationship defence. The Defence therefore elected not to call Mr Wong as its witness and it closed its case.

After hearing the parties’ closing submissions, the DJ found that the special relationship defence was not inherently incredible and that it created a reasonable doubt in respect of all ten charges as to whether there was an objectively corrupt element and whether the applicant possessed the requisite guilty knowledge. As there was no rebuttal by the Prosecution, the various acts of giving could not be gratification given with a corrupt intent and could not be inducements to advance her business interests. The applicant was therefore acquitted on all ten charges. The DJ’s grounds of his decision are set out in Public Prosecutor v Kong Swee Eng [2020] SGDC 140.

Appeal to the General Division of the High Court

The Prosecution appealed against the DJ’s decision to acquit. On appeal, the Judge of the General Division of the High Court (the “Judge”) held that the special relationship defence was inherently incredible. In particular, the Judge observed that: (a) this defence was raised only at the trial and the applicant had given inconsistent accounts as to the existence of the special relationship; (b) there was no corroborative evidence which supported the existence of the special relationship; (c) it was completely unclear how the special relationship worked, particularly alongside JSPL’s procurement processes; and (d) in many instances, the special relationship defence was contradicted by the evidence adduced at the trial.

The Judge therefore found the special relationship defence to be inherently incredible. It followed that the applicant had not met her evidential burden and that she had not put the existence of the special relationship into issue. The Prosecution therefore did not have to call Mr Wong to rebut the applicant’s testimony on this and its failure to do so was not fatal to its case.

After considering the evidence in respect of the other elements of the ten charges against the applicant, the Judge held that eight charges were made out and convicted the applicant on those charges accordingly. The Judge affirmed the acquittal on the remaining two charges. The Judge has directed the parties to file their submissions on sentencing. The applicant has not been sentenced. The Judge’s decision is set out in Public Prosecutor v Kong Swee Eng [2022] SGHC 6 (“Kong (MA)”).

Application for leave to apply to review

After the Judge gave his decision in the Prosecution’s appeal on 13 September 2021, the applicant invited Mr Wong to provide two further statements. These were recorded on 6 October and 10 November 2021. Relying on these two new statements, the applicant filed HC/CM 105/2021 (“CM 105”) on 18 November 2021 to seek leave under s 394H(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to make an application to review the Judge’s decision.

The Judge held that the two further statements obtained from Mr Wong were substantially similar to his investigation statements which the Prosecution had disclosed to the applicant at the trial. The purported “new evidence” could have been adduced earlier with reasonable diligence. The Judge took the view that Mr Wong’s evidence could have been adduced earlier at the trial but the Defence took a considered decision not to call him as a witness.

In any event, the further statements did not show conclusively that there had been a miscarriage of justice. They did not show that Rainbow had been guaranteed JSPL’s custom. Instead, they suggested that JSPL had relationships with what Mr Wong called “strategic suppliers”. These suppliers still had to meet certain conditions in order to secure JSPL’s custom.

Accordingly, the Judge dismissed CM 105 (see Kong Swee Eng v Public Prosecutor [2022] SGHC 50). In connection with CM 105, the Prosecution sought a personal costs order against Mr Khoo as he was counsel for the applicant at the time CM 105 was made to the court. On 23 May, the Judge...